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George Will

The Supreme Court doesn’t resolve the wrongs of affirmative action

On Monday, the Supreme Court thrashed around in the thicket it has cultivated and fertilized for more than three decades. In a case coming from the University of Texas at Austin, it instructed a lower court to square this circle:

Because the 14th Amendment guarantees “equal protection of the laws,” universities wishing to ignore that guarantee in order to use racial classifications in admissions must be accorded “some” deference in their exercise of academic freedom. But the court thinks suspensions of constitutional guarantees are kind of important, so the court has decided to pretend that the guarantee is somehow not really being truncated. So an academic institution’s use of race must withstand “strict scrutiny,” meaning it must be narrowly tailored to achieve a compelling government interest.

What a tangled web the court weaves when first it practices to deceive itself about what it is doing to the equal protection guarantee. The 14th Amendment stops guaranteeing equal protection when the court defers to the “experience and expertise” of public universities in fine-tuning the racial and ethnic compositions of their student bodies in order to attain a “critical mass” of certain government-approved minorities.

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Didn’t the opinion say that the only reason they didn’t decide on the issue as a whole was because the petitioner didn’t ask them to? That implies they would have if been asked and opens the door to another case at a later time.

This morning, the U.S. Supreme Court issued its decision in the case of Fisher v. The University of Texas at Austin, in which the plaintiff challenged any consideration of race in the admissions process. The University’s policy considers race as one among many factors in a holistic review of applicants who are not admitted automatically by the state’s Top 10 Percent Law.

Today, the Court vacated and remanded the Fisher case back to the Fifth Circuit Court of Appeals, finding that the lower court had not applied a strict enough standard when it found in favor of the University. It is important to note that the Court did not prohibit the use of race in admissions, as the current law permits. Today’s ruling has no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policy.

For many years, The University of Texas at Austin has been a leading advocate for diversity in higher education. As we argued before the Court, we believe a diverse student body is critical to the education of all students. It creates a rich learning environment that prepares young people for life in an increasingly global society. Because we remain convinced of this truth, and because diversity is critical to our becoming America’s best public university, we will continue to defend our policy.

Thank you for all the ways you support our core purpose of transforming lives for the benefit of society.

The Supremes half-assed, lackluster approach by watering down the Constitution and passing on their oaths reeks of the same riot-control agenda of the sleazy judge and persecutor in the Saint Trayvon show trial. The same as Lance Ito posterior kissing of the OJ defense team to keep South Central LA riots at bay.

When the Roe decision made us little better than Nazis, then their stretch of defining vulgarity as “art”, then their Kelo abomination weakening the Founder’s concept of private property the Supremes demonstrate the dangers of vain robed bureaucrats answerable to no-one but themselves. A plutocracy of nine the Founders would have risen up against as a modern monarchy / plutocracy equivalent.

As condign punishment for the wrong turn it took in Bakke, the court has been entangled for 35 years in a thicket of preferences that are not remedial and hence are not temporary. Preferences as recompense for past discrimination must eventually become implausible; the diversity rationale for preferences is immortal. And litigation about it will continue longer than forever.

When Will is good, he’s very good. This moves straight to the core, not just of what’s wrong with university making a virtue of diversity, but whose fault it is that the policy is incoherent.

SCOTUS made this mess, and still haven’t figured out that vague promises about letting racial discrimination expire one day amounts to letting them continue for a few more years … or generations.